United States Court of Appeals 

For the First Circuit 

No. 16-1009 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

RAFAEL HUMBERTO CELAYA VALENZUELA, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW HAMPSHIRE 

[Hon. Joseph Laplante, Chief U.S. District Judge] 

Before 

 Howard, Chief Judge, 

Souter, Associate Justice,*

and Stahl, Circuit Judge. 

 Julie K. Connolly, with whom Julie Connolly Law, PLLC was on 

brief, for appellant. 

 Seth R. Aframe, Assistant United States Attorney, with whom 

Emily Gray Rice, United States Attorney, was on brief for appellee. 

February 24, 2017 

 * Hon. David H. Souter, Associate Justice (Ret.) of the 

Supreme Court of the United States, sitting by designation. 
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STAHL, Circuit Judge. Beginning in May of 2009, the FBI 

launched a sting operation, codenamed Operation Dark Water, 

targeting the Sinaloa Drug Cartel. Undercover agents held 

themselves out as an organized crime operation, led by an Italian 

mafia boss who went by the name El Viejo ("the Old Man"), which 

sought to procure a long-term source of cocaine from the cartel. 

Among the high-level cartel members eventually ensnared by this 

investigative web was Rafael Humberto Celaya Valenzuela 

("Celaya"), a financial planner and lawyer with close personal 

ties to the Cartel's then-leader, Joaquin Guzman-Loera, known more 

commonly as "El Chapo." Celaya was charged in the District of New 

Hampshire with conspiracy to distribute and possess with intent to 

distribute controlled substances, in violation of 21 U.S.C. § 846. 

He was convicted following a five-day jury trial and sentenced to 

210 months imprisonment, and now appeals both his conviction and 

sentence. Finding no merit to his various claims, we AFFIRM. 

I. Facts & Background 

 Celaya first came to the attention of law enforcement in 

August 2010, when he accompanied Jesus Manuel Gutierrez-Guzman 

("Guzman"), El Chapo's cousin and close confidant, and other coconspirators to a meeting with the undercover agents (the "FBI 

Organization") in Hallandale, Florida.1 At that meeting, Celaya 

 1 Of course, the conspiratorial agreement was among members 

of the Chapo Organization, because a defendant cannot be guilty of 
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was introduced as a lawyer and financial planner. The parties 

discussed how their partnership could move forward, with the FBI 

Organization expressing a preference for using seaports on the 

east coast of the United States as a transit point for shipments 

of cocaine from South America to Europe. The FBI represented to 

the Chapo Organization that because of their contacts in the 

longshoremens' unions at the ports, they could ensure smooth entry 

into and out of the ports, while avoiding detection by customs 

authorities. They suggested this method would be advantageous 

because shipments sent directly from South America to Europe would 

be more likely to raise suspicion. The specific ports discussed, 

and subsequently included on code sheets drawn up by the Chapo 

Organization for use in future communications, were Philadelphia, 

Newark, Providence, and Portsmouth, New Hampshire. 

 Celaya made statements at this meeting that it was his 

understanding that the FBI Organization had contacts in the 

stevedores' unions that would allow the drugs to be repackaged and 

sent on to Europe. He reiterated that the Chapo Organization did 

not have a preference for a particular port, but would simply 

"prefer the port that you say is the safest one for you." When 

Guzman expressed concerns that "the gringos are really fucking 

with everyone about coming into the United States," the defendant 

 

conspiring to commit crimes with government agents. See, e.g., 

United States v. Nelson-Rodriguez, 319 F.3d 12, 39 (1st Cir. 2003). 
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sought to allay these fears by suggesting that "if the product is 

sent directly [to] Europe it will have a red flag on it already 

. . . Once it's brought in [to U.S. ports], relabeled and sent 

. . . [i]t practically goes preapproved." The defendant added 

that using U.S. ports, where the FBI Organization had local 

dockworkers in on the scheme, would be a "green light." The 

following day, the parties met again to discuss methods for 

laundering the proceeds from the drug sales. Celaya was a central 

player in these discussions, apparently because of his legal and 

financial expertise. 

 On April 21, 2011, Guzman met with El Viejo, the FBI 

agent purporting to be the head of the crime organization, at a 

hotel in New Hampshire near Portsmouth. The purpose of the meeting 

was to discuss the first shipment on which the two sides would be 

cooperating, which would originate in Ecuador and be shipped to 

Spain. While Guzman explained that it was El Chapo's preference 

for this first shipment to proceed directly from Ecuador to Spain 

without stopping in any U.S. ports, he said that the Chapo 

Organization was open to "modifying" the delivery method in the 

future. 

 Also in that meeting, El Viejo told Guzman that the 

cocaine provided by the Chapo Organization would be distributed in 

Europe and the United States, because he had many clients that 

needed the drugs, including in Florida and New Hampshire. El Viejo 
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told Guzman that "everybody thinks I'm a legitimate businessman," 

adding that "I'm like the American Donald Trump . . . except I 

don't have the hair" and "there is going to be an explosion of 

business" once El Viejo could obtain El Chapo's "high quality 

product." Guzman replied that he understood that distribution in 

the United States was one of El Viejo's objectives. Guzman also 

made reference to the defendant, telling El Viejo that Celaya was 

a trusted member of the Chapo Organization and that he had 

personally met with El Chapo and "explained everything to him." 

Other meetings followed, including one in Boston in August 2011 at 

which the defendant was present.

 Initially, a series of delays, including the Chapo 

Organization's desire to run several test shipments without 

contraband, prevented the actual shipment of cocaine to Europe. 

In order to maintain the goodwill of the FBI Organization, on June 

7, 2012, Guzman arranged for the delivery of heroin to the FBI 

Organization in Detroit, Michigan. In July 2012, the Chapo 

Organization finally sent 346 kilograms of cocaine from Brazil to 

Algeciras, Spain, bypassing U.S. ports. The following month, 

Guzman traveled to Spain to meet with El Viejo. At that meeting, 

El Viejo reiterated that the United States would be one of the 

destinations for the cocaine shipped by the Chapo Organization in 

the future, to which Guzman replied, "Yes, sir." 
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 Shortly after this meeting, Spanish authorities placed 

Celaya under arrest. After Celaya waived his Miranda rights, the 

FBI then interviewed him. In that interview, Celaya admitted that 

he had conspired to distribute cocaine, and that in March 2011, 

after one of the initial meetings, he had travelled to Mexico to 

personally meet with El Chapo. At that meeting, he told El Chapo 

that he believed the FBI Organization was a real drug cartel and 

that El Chapo should proceed with the plan to supply it with 

cocaine.

 Celaya was indicted in the District of New Hampshire and 

charged with conspiring, between March 2009 and September 2012, to 

distribute and possess with intent to distribute a quantity of 

heroin, methamphetamine, and 1,000 kilograms or more of cocaine, 

in violation of 21 U.S.C. §§ 846 and 841(a)(1). The case proceeded 

to a jury trial. At the close of the government's case-in-chief, 

the defendant moved for a judgment of acquittal under Federal Rule 

of Criminal Procedure 29, claiming that there was insufficient 

evidence that he had participated in the conspiracy, and that there 

was insufficient evidence of venue. More specifically, he argued 

that at the time the actual shipments took place, he "was no longer 

in the picture" and was not involved in the conspiracy. On the 

venue point, he argued that the only overt act in furtherance of 

the conspiracy that occurred in New Hampshire was the Portsmouth 

meeting, and since it was an FBI source who drove Guzman from 
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Boston's Logan Airport to the meeting, the government had 

"manufactured" venue in New Hampshire. 

 The district court denied this motion, and after a fiveday trial, the jury returned a guilty verdict against Celaya. Six 

months after the verdict, Celaya filed a motion to reconsider the 

denial of his earlier Rule 29 motion, raising for the first time 

the argument that the overarching conspiracy did not have a 

sufficient jurisdictional nexus to the United States, and that the 

government had failed to present any evidence that Celaya knew 

that an object of the conspiracy was to possess or distribute 

controlled substances in the United States. The district court 

denied this motion as untimely, but also concluded that the 

defendant's argument on jurisdictional nexus would have failed on 

the merits in any event since the evidence introduced at trial was 

sufficient for a jury to conclude that the conspiracy envisioned 

the distribution of drugs into the United States and the use of 

seaports on the east coast of the United States as transit points 

on the way to Europe, and that overt acts in furtherance of the 

conspiracy took place on U.S. soil. 

At sentencing, the district court calculated that the 

defendant's criminal conduct warranted a total offense level of 38 

(largely as a result of the weight of drugs attributed to the 

conspiracy) and a criminal history category of I, which yielded a 

guideline sentence range of 235 to 293 months imprisonment. The 
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district court rejected a defense counsel request for a 

minimal/minor role downward adjustment under U.S.S.G. § 3B1.2, 

concluding that the defendant was a "top level negotiator . . . 

with access to the highest levels of the cartel." The court 

ultimately did allow a minor downward variance to bring Celaya's 

sentence in line with that of Guzman (who had pleaded guilty), 

eventually settling on 210 months' imprisonment. This appeal 

followed. 

II. Discussion 

 On appeal, Celaya challenges three aspects of the 

district court's ruling below. First, he argues that the 

government failed to prove that the conspiracy in question had a 

"jurisdictional nexus" to the United States. Second, he argues 

that the government "manufactured" venue in the District of New 

Hampshire by driving Guzman, a co-conspirator, from Boston's Logan 

Airport across the border into New Hampshire for a meeting. As a 

derivative of those arguments, Celaya contends that the district 

court's failure to instruct the jury on jurisdictional nexus and 

manufactured venue was in error. Third, he argues that his 210-

month prison sentence was substantively unreasonable. We address, 

and dispose of, each of these arguments seriatim. 
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 A. Jurisdictional Nexus 

 i. Standard of Review 

The first group of challenges that Celaya presents 

concerns the sufficiency of evidence against him at trial and the 

district court's denial of both his Rule 29 Motion for a Judgment 

of Acquittal and his Motion for Reconsideration of his Motion for 

Judgment of Acquittal. The Court of Appeals reviews the denial of 

a motion to reconsider for an abuse of discretion. See United 

States v. Allen, 573 F.3d 42, 53 (1st Cir. 2009). However, when 

a Rule 29 motion (or a Motion to Reconsider a previous Rule 29 

motion) presents a new argument not previously presented to the 

district court, appellate review is more circumscribed. See United 

States v. Castro-Lara, 970 F.2d 976, 980 n.2 (1st Cir. 1992) 

("Where a Rule 29 motion is not preserved for appeal, the defendant 

forfeits the benefit of the customary standard of review, thereby 

negating any claim of evidentiary insufficiency unless affirming 

the conviction would work a 'clear and gross injustice.'") (quoting 

United States v. Cheung, 836 F.2d 729, 730 n.1 (1st Cir. 1988)). 

We find that the “jurisdictional nexus” argument was not 

timely raised in the district court, either at trial or in Celaya’s 

original Rule 29 motion. The only arguments made by the defendant 

in his original Rule 29 motion were that (1) he was not actually 

a member of the conspiracy, and (2) there was insufficient evidence 

of venue in New Hampshire. At no point did he raise the objection 
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that the alleged conspiracy was entirely extraterritorial in 

nature and thus insufficient, as a matter of law, to convict him 

for a violation of 21 U.S.C. § 846 if the jury found that he was 

a member of the conspiracy. In fact, in his Rule 29 Motion, Celaya 

conceded that "there was substantial evidence introduced by the 

Government that could reasonably be understood by the jury to show 

that the Sinaloan cartel wanted to expand its drug trafficking 

network into Europe, and perhaps the United States." After 

conceding this point, however, the defense argued that "the 

evidence failed to demonstrate that the cartel actually agreed to 

include Celaya in that conspiracy." 

Six months later, in his Motion for Reconsideration, 

Celaya switched gears, arguing that while the jury may have found 

that he was a member of the conspiracy, the evidence adduced at 

trial "can only be reasonably and fairly understood as establishing 

that the [sic] Celaya and his coconspirators agreed to the common 

goal of shipping cocaine from South America to Europe" and nothing 

in the record "remotely shows, or even suggests, that Celaya 

knowingly agreed to participate in a conspiracy to distribute or 

possess with intent to distribute illegal drugs in New Hampshire 

or anywhere else in the United States, so as to violate §§ 841(a) 

and 846." Indeed, at oral argument before the district court 

accompanying their motion for reconsideration, defense counsel 
- 11 - 

admitted that this was a new argument that they had not previously 

presented to the court.2 

We have routinely emphasized that a party’s decision to 

adopt this sort of shifting litigation tactic results in an 

elevated standard of review. See, e.g., United States v. Marston, 

694 F.3d 131, 134 (1st Cir. 2012) ("[W]hen a defendant chooses 

only to give specific grounds for a Rule 29 motion, all grounds 

not specified are considered waived and are reviewed under [the] 

less forgiving 'clear and gross injustice' standard.") (quoting 

United States v. Upham, 148 F.3d 532, 537 (1st Cir. 1999), cert. 

denied, 527 U.S. 1011 (1999)); United States v. Foley, 783 F.3d 

7, 12 (1st Cir. 2015) (stating that when a "sufficiency challenge 

[is] unpreserved," the appeals court "review[s] for clear and 

gross injustice only"). 

 2 THE COURT: As I read this argument, it is not an argument 

you've ever made before you filed this motion; is that right? 

COUNSEL: That's right, your Honor. 

... 

COUNSEL: I think that the papers readily concede that the 

lawyers did not present this argument to you, so it's not that we 

presented it and you missed it. It was that this is a new argument 

that wasn't presented before and it would result in a manifest 

error of law if it were to stand going forward, and therefore we're 

presenting it to the Court now and giving the Court an opportunity 

to consider it. 
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Because a Motion for Reconsideration of the denial of a 

previous Rule 29 motion is not the appropriate time to raise new, 

much less contradictory, arguments, we will affirm the district 

court’s ruling unless doing so would produce a “clear and gross 

injustice." Cheung, 836 F.2d at 730 n.1. Under this "stringent 

standard, which we have described as a particularly exacting 

variant of plain error review," Foley, 783 F.3d at 12, the "already 

high bar for plain error becomes even higher." United States v. 

Acosta-Colón, 741 F.3d 179, 192-93 (1st Cir. 2013). Even to 

prevail under the more lenient plain error review, a defendant 

must show (1) that an error occurred, (2) which was clear or 

obvious, (3) that affected the defendant's substantial rights, and 

(4) seriously impaired the fairness, integrity, or public 

reputation of the judicial proceedings. United States v. Flemmi, 

402 F.3d 79, 86 (1st Cir. 2005). As we explain below, there was 

no error in finding that an adequate jurisdictional nexus existed 

between the conspiratorial agreement and objectives and the United 

States, and Celaya therefore cannot prevail under plain error 

review, much less under the more exacting "clear and gross 

injustice" standard. 

ii. Jurisdictional Nexus

The question of what is required to prove a sufficient 

jurisdictional nexus with the United States to prosecute a § 846 

conspiracy is an issue that has not been squarely addressed by 
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this Court. However, both parties agree that some jurisdictional 

nexus is required. This conclusion is bolstered by the general 

presumption that Congress does not legislate with extraterritorial 

effect unless clearly specified.3 Finally, this Court has held 

that § 841, which covers distribution or possession with the intent 

to distribute controlled substances, does not cover purely 

extraterritorial crimes. See United States v. Hayes, 653 F.2d 8, 

15 (1st Cir. 1981); see also United States v. McKenzie, 818 F.2d 

115, 118 (1st Cir. 1987) (holding that § 841 is triggered if the 

 3 In a case decided last June, the Supreme Court 

clarified its test for deciding whether a statute applies 

extraterritorially. See RJR Nabisco, Inc. v. European Cmty., 136 

S. Ct. 2090, 2101 (2016). 

Morrison and Kiobel reflect a two-step framework for 

analyzing extraterritoriality issues. At the first 

step, we ask whether the presumption against 

extraterritoriality has been rebutted—that is, whether 

the statute gives a clear, affirmative indication that 

it applies extraterritorially. We must ask this question 

regardless of whether the statute in question regulates 

conduct, affords relief, or merely confers jurisdiction. 

If the statute is not extraterritorial, then at the 

second step we determine whether the case involves a 

domestic application of the statute, and we do this by 

looking to the statute's "focus." If the conduct 

relevant to the statute's focus occurred in the United 

States, then the case involves a permissible domestic 

application even if other conduct occurred abroad; but 

if the conduct relevant to the focus occurred in a 

foreign country, then the case involves an impermissible 

extraterritorial application regardless of any other 

conduct that occurred in U.S. territory. 

Id. (citing and discussing Morrison v. Nat'l Austl. Bank Ltd., 561 

U.S. 247 (2010) and Kiobel v. Royal Dutch Petroleum Co., 133 S. 

Ct. 1659 (2013)). 
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defendant intended that the controlled substances be distributed 

in the United States, even if no actual distribution took place, 

or if the defendant possessed the controlled substances in the 

United States with the intent to distribute the drugs abroad). 

Because a conspiracy under § 846 is an agreement to violate § 841, 

it stands to reason that the same jurisdictional requirement needs 

to be met. However, in this case, several specific factors, 

including the meeting in New Hampshire between Guzman and El Viejo, 

the discussion of using eastern seaboard ports for future 

trafficking, and the shipment of heroin and methamphetamine to 

Detroit in June 2012, combine to clearly satisfy the required 

jurisdictional nexus. 

Celaya first contends that the meeting in New Hampshire 

between Guzman and El Viejo, the undercover FBI agent posing as a 

mafia boss, is not enough evidence to establish a jurisdictional 

tie to the United States. Celaya makes the same argument with 

respect to the meetings in Florida and Boston that he himself 

attended. In support of this argument, he cites United States v. 

Lopez-Vanegas, 493 F.3d 1305 (11th Cir. 2007), for the proposition 

that meetings inside the United States are not sufficient to 

establish a jurisdictional nexus when "the object of the conspiracy 

was to possess controlled substances outside the United States 

with the intent to distribute outside the United States." Id. at 

1313. This is true enough, and the government in this case 
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concedes that mere meetings in the United States to discuss the 

details of an entirely international drug distribution scheme 

would not be sufficient. 

However, the problem for Celaya with this argument is 

twofold. First, there was other evidence suggesting that members 

of the conspiracy, including Guzman, saw distribution in the United 

States as one of the objects of the conspiracy. In a meeting, El 

Viejo informed Guzman that their goal in acquiring cocaine from 

the Chapo Organization was to distribute the drugs in the United 

States, among other places, and Guzman responded affirmatively 

that he understood this. Celaya protests that it was the 

government agent, not Guzman, who discussed plans to distribute 

drugs in the United States. However, this is a distinction without 

a difference when dealing with conspiracy liability, as 

conspirators who have previously entered into a criminal agreement 

among themselves, in concert with government agents, can be 

convicted based on the distribution plans articulated by 

government agents if they fail to object to those plans. See 

United States v. Giry, 818 F.2d 120, 125 (1st Cir. 1987) (finding 

that even though the two defendants' role was limited to importing 

cocaine from Colombia to the West Indies, liability still attached 

because they "agreed to arrange and carry out the cocaine sale 

after being told by agents . . . of the latters' plans to import 

the cocaine for distribution in the New York area"). 
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Second, Celaya's argument that he did not know about the 

New Hampshire meeting fails because there is no governing law in 

this circuit which suggests that Celaya's alleged lack of knowledge 

of the actions of his co-conspirator is a defense to liability. 

Indeed, one out-of-circuit case appears to suggest the opposite. 

See United States v. Manuel, 371 F. Supp. 2d 404, 409 (S.D.N.Y. 

2005) (holding that where a crime is within the jurisdiction of 

the United States, it is not necessary that the defendant know the 

facts that establish jurisdiction). Such a rule fits with the 

broader principles of conspiracy liability enforced by courts, 

including the First Circuit. See United States v. Barnes, 244 

F.3d 172, 176 (1st Cir. 2001) (noting that "[o]nce a participant 

knowingly helps to initiate the agreement and set it in motion, he 

assumes conspirator's responsibility for the foreseeable actions 

of his confederates within the scope of the conspiratorial 

agreement, whether or not he is aware of precisely what steps they 

plan to take to accomplish the agreed goals"). 

Two more points undermine Celaya’s argument. First, 

Guzman, one of his co-conspirators and a close cousin and 

lieutenant of El Chapo, arranged for a delivery of drugs (heroin 

and methamphetamine) to Detroit in June 2012 in order to maintain 

the goodwill of the FBI Organization and to make amends for having 

failed to disclose that one of the first shipments to Spain was a 

test run that did not contain any actual drugs. It is immaterial 
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that Celaya did not “explicitly or tacitly agree[] to the delivery 

of drugs to Detroit," as he argues in his brief. The discussions 

between the Chapo Organization and the FBI Organization were 

sufficient to find that members of the Chapo Organization entered 

into a major, transnational conspiracy in which they agreed to 

regularly supply the FBI Organization with drugs for distribution 

primarily in Europe, but also the United States. The Detroit 

shipment was designed to build goodwill and maintain the 

relationship in light of frustrations on the part of the FBI 

Organization with some of the delays and expense connected with 

the initial cocaine shipment to Spain. It was not, therefore, a 

one-off event, nor was it a separate conspiratorial agreement. 

Rather, the Detroit shipment was part of the ongoing conspiracy. 

There was no gross injustice in finding that Celaya was a part of 

this conspiracy and that the Detroit shipment, when coupled with 

Guzman's knowledge that some of the drugs were to be delivered 

into the United States and with the meeting in New Hampshire to 

advance these plans, was sufficient to establish the required 

jurisdictional nexus to the United States.4

 4 We also find Celaya's argument that he was no longer a 

member of the conspiracy at the time of the Detroit shipment to be 

without any factual basis in the record. As counsel for Celaya 

conceded at oral argument, this would require a showing that Celaya 

had withdrawn from the conspiracy sometime between 2011 and the 

June 2012 shipment, and he has made no such showing. 
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Second, the jury reasonably could have found that the 

parties continued to contemplate the use of seaports on the east 

coast of the United States, even if the one shipment of cocaine to 

Spain which actually took place did not proceed via a U.S. port. 

At meetings in Madrid, Spain, in March 2011, a representative of 

the Sinaloa Cartel, Jose Locheo del Rio, expressed concern about 

the use of American ports when the drugs originated in Ecuador (as 

they were scheduled to in the initial shipment), because this would 

mean the drugs would have to travel through the Panama Canal. In 

particular, Del Rio expressed concern that the use of the Panama 

Canal would require a transfer by train which could render the 

drugs susceptible to hijackings and also to law enforcement 

interdictions. However, representatives from the Chapo 

Organization also emphasized at various points during their 

meetings that the drugs would originate in various South American 

countries, including some along the Atlantic Ocean, and they never 

definitively ruled out the use of U.S. ports as a transit point 

that might reduce law enforcement suspicion. Therefore, a jury 

could reasonably have found that the use of eastern seaports in 

the continental United States continued to be contemplated by the 

parties for future shipments, as agreed to during the August 2010 

Florida meetings. 

In conclusion, unlike in Lopez-Vanegas, there was 

sufficient evidence for a jury to find that this was not an 
- 19 - 

entirely "international" drug distribution scheme which, but for 

the meetings in the United States, would have had no connection to 

the country. As previously discussed, Celaya himself conceded in 

his Rule 29 motion that "there was substantial evidence introduced 

by the Government that could reasonably be understood by the jury 

to show that the Sinaloan cartel wanted to expand its drug 

trafficking network into Europe, and perhaps the United States." 

Our holding does not rest on any individual factor 

identified above, rather, taken together, we think they clearly 

meet the jurisdictional nexus requirement, and the district 

court’s decision to deny Celaya’s Rule 29 Motion and his Motion 

for Reconsideration did not result in a “clear and gross 

injustice.” Finally, because we have found that there was more 

than sufficient evidence for a jury to find that the conspiracy 

both involved the intent to distribute controlled substances in 

the United States and, on one occasion, did include such a 

shipment, we find no error in the district court’s failure to 

specifically instruct the jury on jurisdictional nexus. 

 B. Venue 

 Celaya's second argument for acquittal is that there was 

insufficient evidence that the conspiracy was "begun, continued or 

completed" in the District of New Hampshire, and thus venue was 

improper. Because this argument was included in the defendant's 

original Rule 29 motion, we undertake de novo review. See, e.g., 
- 20 - 

Marston, 694 F.3d at 134. With respect to sufficiency of venue, 

the government must prove venue by a preponderance of the evidence. 

United States v. Scott, 270 F.3d 30, 34 (1st Cir. 2001). 

 According to Celaya, the three pieces of evidence 

offered by the government to establish venue in New Hampshire, (i) 

including Portsmouth on the list of possible transit ports for 

shipments; (ii) representing that El Viejo would distribute his 

cocaine in New Hampshire, among other places; and (iii) bringing 

Guzman to New Hampshire from Logan Airport to meet with El Viejo, 

were all insufficient. This argument fails because an overt act 

in furtherance of the conspiracy, the meeting between Guzman and 

El Viejo, clearly took place in Portsmouth, NH. At that meeting, 

Guzman and El Viejo discussed detailed plans for the Chapo 

Organization's role in providing cocaine to the FBI Organization. 

This discussion represented a key part of the planning process 

after the various members of the Chapo Organization had reached an 

agreement among themselves to provide cocaine to the FBI 

Organization. Since Guzman was a clear co-conspirator of Celaya, 

it is immaterial that Celaya himself was not present at this 

meeting. See United States v. Santiago, 83 F.3d 20, 25 (1st Cir. 

1996) ("[I]n a conspiracy case venue is proper in any district in 

which an act in furtherance of the charged conspiracy has taken 

place, even if a particular coconspirator was not himself 

physically present in that district.") 
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 Celaya's fallback argument is that because it was a 

government agent who drove Guzman from Boston's Logan Airport to 

the Portsmouth meeting, the government "manufactured" venue in New 

Hampshire, and therefore this fails as a matter of law. However, 

the First Circuit has never accepted the existence of a 

"manufactured venue" doctrine, and most circuits have rejected the 

concept of manufactured venue or "venue entrapment." See, e.g., 

United States v. Rodriguez-Rodriguez, 453 F.3d 458, 462 (7th Cir. 

2006) ("[Government] agents may influence where the federal crime 

occurs, and thus where venue lies, as well as whether the crime 

comes under federal rather than state law. The entrapment doctrine 

protects the defendant against manufactured offenses (unless the 

defendant is predisposed); it does not limit venue."); see also 

United States v. Al-Talib, 55 F.3d 923, 929 (4th Cir. 1995) ("There 

is no such thing as 'manufactured venue' or 'venue entrapment.'"); 

United States v. Spriggs, 102 F.3d 1245, 1250 (D.C. Cir. 1996) 

("[W]e are uncertain whether there is such a thing as 'venue 

entrapment.' It is a little hard to conceive of a person 

predisposed to commit a federal crime––but not in some specific 

district.")5

 5 Even the two circuits that have not categorically refused 

to rule out manufactured venue have emphasized that it would only 

be viable in cases of extreme government misconduct. See United 

States v. Chi Tong Kuok, 671 F.3d 931, 938 (9th Cir. 2012) 

(electing not to reach the question of whether a manufactured venue 

challenge might succeed because there was nothing “extreme” about 
- 22 - 

 The better rule appears to be that to the extent that 

prosecutorial forum shopping "is a concern in a given case, it is 

more appropriately handled at the trial level by a transfer to a 

more reasonable forum" under Federal Rule of Criminal Procedure 

21. Andrews v. United States, 817 F.2d 1277, 1279-80 (7th Cir. 

1987). Indeed, it is hard to understand what the underlying logic 

for "venue entrapment" would be, since entrapment in criminal law 

is designed to avoid punishment for "an 'otherwise innocent' person 

whose 'alleged offense' is 'the product of the creative activity' 

of government officials," United States v. Gendron, 18 F.3d 955, 

961 (1st Cir. 1994) (quoting Sorells v. United States, 287 U.S. 

435, 451 (1932)), not to avoid punishment for a defendant involved 

in a wide-ranging global narcotics conspiracy because government 

agents drove one of his co-conspirators an hour from Boston to 

Portsmouth, NH, for a meeting to discuss a planned drug 

 

an Immigration and Customs Enforcement undercover operation, based 

in San Diego, deciding to cash the foreign defendant's money order 

for arms sales in a bank in San Diego, thus leading to venue in 

the Southern District of California); United States v. Myers, 692 

F.2d 823, 847 n.21 (2d Cir. 1982) (not precluding a possible 

manufactured venue defense "in which key events occur in one 

district, but the prosecution, preferring trial elsewhere, lures 

a defendant to a distant district for some minor event simply to 

establish venue," but finding that standard inapplicable in that 

case). Indeed, in a more recent case, the Second Circuit noted 

that "[i]n the quarter century since Myers, this court has never 

vacated a conviction on the basis of manufactured venue." United 

States v. Rommy, 506 F.3d 108, 127 (2d Cir. 2007). 
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distribution network. The high-level meeting in New Hampshire 

involving Guzman, a co-conspirator and close confidant of El Chapo 

-- the Sinaloa Cartel's chief -- suggests an even stronger argument 

for venue than previous acts found sufficient for venue in federal 

courts, including telephone conversations. See, e.g., United 

States v. Cordero, 668 F.2d 32, 44 (1st Cir. 1981) (noting that 

phone calls from defendants outside of Puerto Rico to a coconspirator in Puerto Rico was likely sufficient for venue to lie 

in Puerto Rico because the offense "continued" in that forum, but 

finding the appellants' argument waived in any event). 

We therefore join the other circuits in rejecting the 

manufactured venue doctrine. However, even if such a doctrine 

were to be available in extreme cases of government misconduct, 

that would simply not be the case here. The undercover agent drove 

Guzman from Boston’s Logan Airport to a Portsmouth, NH-area hotel 

for a meeting (a drive of roughly an hour). We see no reason why 

the government could not bring its case in an adjacent 

jurisdiction, when it could have arranged the meeting just a few 

miles south in Massachusetts and secured venue there without any 

possible objection. 

 C. Reasonableness of the Sentence 

 Celaya's final argument is that his 210-month prison 

sentence was unreasonable, on the grounds that the district court 

erred by failing to give him a downward adjustment for what he 
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claims was a minor role in the conspiracy, and also erred in 

applying the sentencing factors under 18 U.S.C. § 3553. We are 

not convinced. 

 To qualify for a three-level reduction for a 

minimal/minor role in the offense under U.S.S.G. § 3b1.2(b), a 

defendant bears the burden of showing that he is less culpable 

than his confederates and less culpable than "most other miscreants 

convicted of comparable crimes." United States v. Montes-Fosse, 

824 F.3d 168, 172 (1st Cir. 2016) (quoting United States v. OrtizSantiago, 211 F.3d 146, 149 (1st Cir. 2000). Because "[r]ole-inthe offense determinations are notoriously fact-sensitive," the 

district court's "decision to apply a minor-role reduction is 

subject to clear error review." Id. (citing Ortiz-Santiago, 211 

F.3d at 148-49). 

Here, the district court properly considered whether the 

reduction was appropriate, and found that it was not. 

Specifically, the court noted that Celaya was at the negotiating 

table with the FBI Organization and, in light of his legal and 

financial background, was a leading voice in discussing the money 

laundering aspects of the conspiracy. He also admitted to meeting 

with El Chapo personally in the mountains in Mexico to recommend 

that the Sinaloa Cartel enter into a partnership with the FBI 

Organization. We find no reason to conclude that the district 
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court committed plain error in not applying the three-level 

reduction. 

 Finally, Celaya argues that his sentence was 

substantively unreasonable because he received a sentence that was 

longer than those of his co-conspirators, who received sentences 

ranging from 60 months to 192 months. The latter sentence was 

handed down to Guzman, and Celaya contends that it was unreasonable 

to sentence him to a term of imprisonment that was eighteen months 

longer than Guzman, who was El Chapo's right-hand man and 

"dominated the conspiracy proven at trial" by attending every 

single meeting with the undercover agents and orchestrating the 

shipment of drugs to Detroit. This sentencing decision, according 

to Celaya, resulted in a misapplication of the § 3553(a) factors, 

which require that a Court "avoid unwarranted sentencing 

disparities among defendants with similar records who have been 

found guilty of similar conduct." 18 U.S.C. § 3553(a)(6). 

 This argument fails for two reasons. First, it is not 

clear from the record that Guzman was necessarily a more central 

player than Celaya, who met with El Chapo and was intimately 

involved in the planning process for the conspiracy. Therefore, 

the fact that his sentence exceeded that given to Guzman and other 

co-conspirators may well constitute a "plausible sentencing 

rationale and a defensible result," United States v. RiveraGonzalez, 626 F.3d 639, 647 (1st Cir. 2010) (quoting United States 
- 26 - 

v. Martin, 520 F.3d 87, 96 (1st Cir. 2008)), as required under 

this court's standard of review for the substantive reasonableness 

of a sentence. Secondly, if that is not enough, there was a 

crucial difference between Celaya and his co-defendants: Celaya 

was the only one who elected not to plead guilty. Therefore, while 

Guzman and other co-defendants were entitled to a three-level 

reduction for acceptance of responsibility, Celaya was not. This 

court "routinely [has] rejected disparity claims" where 

"complaining defendants . . . fail to acknowledge material 

differences between their own circumstances and those of their 

more leniently punished confederates." United States v. ReyesSantiago, 804 F.3d 453, 467 (1st Cir. 2015). A decision to proceed 

to trial, rather than to plead guilty alongside other codefendants, is a permissible factor that a court may consider in 

determining a possible sentencing disparity between a defendant 

and his other coconspirators. See, e.g., United States v. OrtizIslas, 829 F.3d 19, 29 (1st Cir. 2016). For both of the above 

reasons, Celaya's claim that the sentence was substantively 

unreasonable fails. 

III. Conclusion 

 For the aforementioned reasons, we AFFIRM Celaya's 

conviction and sentence.